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Mar 30, 2017 - Zoltán Kovács

Is the European Court of Human Rights going to tell you who gets to cross the border into Europe?

According to Schengen rules, if people enter the Schengen zone by crossing the Hungarian border and do not have proper documentation, then Hungary has a legal obligation to ensure that those people do not leave until their status is clarified.

On the other hand, the European Court of Human Rights recently ruled that Hungary must guarantee the freedom of movement of those people. These are madly conflicting obligations. It’s one or the other. Both of them simply cannot be upheld at the same time.

We know because we tried it, and it didn’t work. Before 2012, long before the migrant crisis that plagues Europe today, people who crossed the borders of the European Union into Hungary and requested asylum were placed in closed refugee camps until their asylum cases were decided. It was a system that worked, a very necessary one. To maintain the freedom of movement in a borderless Europe, a member state like Hungary could not allow people to roam around freely without documentation or proper background checks.

That all changed in 2012 when the European Court of Human Rights, in a case called Said and company v. Hungary, Al-Tayyar Abdelhakim v. Hungary, forced Hungary to handle the asylum-seekers differently. The law suits were filed by two siblings from Iraq, who entered the border illegally and one Palestinian, who presented fake documents to the authorities. While the claimants in the cases had clearly broken the law and demonstrated unbecoming behavior, the ECHR ruled that Hungary should have let these people walk free.

When the court ruled in 2012, though, the number of illegals crossing the EU’s border in Hungary was around 2 thousand. In 2015, the number skyrocketed to a level 200 times that, reaching almost 400 thousand. Those crossing illegally require an extensive background check, which takes a lot of time, especially when many do not cooperate with the process. In the meantime, no longer in a closed camp, thousands who had crossed illegally into the EU’s Schengen zone and who were free to roam did exactly what you might expect them to do: they went on the lam.

Since 2015, Hungary has built physical and legal barriers to protect Europe’s border, and it has worked. In one of the latest moves, we have brought back the camps and put them in a transit zone. The passage into Hungary and Europe’s Schengen Area is closed, prohibiting exit to any who have not yet received asylum or other permission to enter. People are free, however, to leave in the other direction, south toward Serbia – which is a safe country. In keeping with our obligations under Schengen, we are not allowing people to cross into the Schengen Area unless they have the proper papers or have been granted asylum.

Now, we have another ECHR ruling. In the Ilias and Ahmed v. Hungary decision of March 14, 2017, the ECHR said that keeping illegals in refugee camps in the transit zone is by all means illegal because it is considered a detention without official decision and thus violates Article 5 of the European Convention of Human Rights that states “everyone has the right to liberty and security of person.”

Hungary has announced that it will appeal the court decision and that appeal offers another chance for the court to resolve the conflict. In our view, the rights and freedoms of European citizens must take priority and, no, not everyone has the right to walk freely.

German Chancellor Angela Merkel has said, commenting on the ruling, that asylum procedures in Hungary were "carried out according to European laws". As Prime Minister Orbán noted, other EU member states do not object because our efforts to secure the border are the “reason people of Austria and Germany may sleep well”.

We’re optimistic that common sense will prevail in the appeal to the court, but behind the legal arguments lies another dimension of the story.

In this latest case, as in 2012, it was the international non-governmental organizations that took these Bangladeshi citizens to the ECHR. They represented them, wrote their claim and celebrated their victory. The Hungarian Helsinki Committee is one of the many NGOs that pose as grassroots organizations but in reality receive foreign funding to push a political agenda. In this case, that pro-immigration agenda is undermining the security of Europe’s borders.

These organizations and one of their most important funders, George Soros, see migration as an opportunity and advocate for a nonexistent right of free movement for illegal migrants over the security concerns of European citizens. These are the organizations that tell migrants not to cooperate with authorities, not to register in the first state they enter – like international rules say they should – to use fake documents and leave before their asylum request is decided. They then argue for the rights of these non-citizens and illegals by packaging it in human rights gibberish. They provide the expert opinions and pay for the lawyers.

They create a false expectation among migrants – like the expectation that they can choose which country they seek asylum in within Europe or where they want to live – and are, according to some, complicit with human traffickers.

If you don’t have a border, as they say, you don’t have a country. Schengen is Europe’s border. It’s a nice idea to believe it could remain open to all but dangerously naïve because of the obvious security risks. The lofty principals that some insist should dictate how we regulate and secure our borders have clearly clashed with the modern-day realities of today’s migration crisis. Whose rights are we going to protect first? Hungary says it should be the rights of European citizens.